II. Recent Updates:
1. Microsoft Corporation (India) Private Ltd. Vs. Commissioner of Service Tax & Anr (Delhi HC), WP (C) No. 11460/2009 & CM No. 11182/2009, Date of judgement October 30, 2009. (In Favour of Revenue).
Brief Fact of the Case:
a. Microsoft Corporation (India) Private Ltd. (Petitioner/Appellant/Assesee) provides various technical support services to Microsoft Operations, Singapore (MS). Both the MS and the petitioner are the wholly owned subsidiaries of Microsoft Corporation, Washington.
b. The respondent/department herein has taken the view that the commission received on these services is amenable to service tax and passed the demand order in the neighbourhood of Rs. 400 crore.
c. The petitioner has filed appeal against this order before the Customs, Excise and Service Tax Appellate Tribunal. This appeal is pending consideration. Along with this appeal, the petitioner also moved an application for stay under Section 35F of the Act, which is made applicable also to service tax vide Section 83 of the Finance Act, 1994.
d. On this stay application, the Tribunal has passed impugned order dated 31.7.2009 directing the petitioner to make pre-deposit of Rs.70 crores and realization of balance demand is settled till the disposal of the appeal. The petitioner is not satisfied with this conditional stay as it wants complete waiver of the condition of pre-deposit. Therefore, challenging that order the present petition is filed.
Held:
14. In Ravi Gupta (supra), referred to by the learned senior counsel for the petitioner, the Apex Court reiterated the principle, firmly approved by series of judgments, that merely on showing a prima facie case, interim order of protection should not be passed. Such a course of action is to be taken only “if on a cursory glance it appears that the demand raised has no leg to stand”.
16. In exercise of our jurisdiction under Article 226 of the Constitution, we feel that it is not a fit case where one should interfere with the said order. This writ petition is, accordingly, dismissed. However, we grant four weeks time to the petitioner to make deposit of the amount as directed by the Tribunal for compliance. The parties shall appear before the Tribunal on 1st December 2009.
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2. Commissioner of Central Excise v. Sunwin Technosolution (P.) Ltd. (SC) CIVIL APPEAL NO. 8084 OF 2010 Judgement dated SEPTEMBER 13, 2010.(In Favour of Department)
Brief Fact of the Case:
By notification dated 10-9-2004, commercial training or coaching provided by vocational and recreational institutes was exempted from payment of service tax. By issuing another notification dated 7-6-2005, notification dated 10-9-2004 was amended by incorporating a proviso that nothing contained in the said notification shall apply to the taxable services provided in relation to commercial training or coaching by a computer training institute. Said proviso was made effective from 16-6-2005. On the basis of the said amendment made, the assessee claimed that service tax would not be payable by a computer training institute, like it, for period from 10-9-2004 to 15-6-2005. The Tribunal disallowed the claim of assessee, which was affirmed by the High Court.
HELD:
8. We have considered the said submission. The notification, dated 10-9-2004 was issued and made effective from the date of its issuance. The same did not include the concept of “computer training institute” within its ambit and under the aforesaid notification, exemption was only granted to vocational and recreational training institute. A computer training institute which is defined and was included in the notification, dated 20-6-2003 was specifically excluded from the purview of the notification, dated 10-9-2004. The Central Government while doing so was fully conscious of the implication thereof and also of the fact as to what constitutes a computer training institute as defined in the notification, dated 20-6-2003.
9. Therefore, in our considered opinion, the Central Government was fully conscious of the fact that the said computer training institute should not get the exemption and intended the same to be shown by specifically excluding the same from the purview of the notification, dated 10-9-2004. The notification was also in operation from the date of its issuance, i.e., from 10-9-2004 to 15-6-2005 without there being any other intendment.
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3. [Contribution by CA NALIN SHARMA, and contributor is available on Mobile No. 9910792325 / email-id: nalinsharma31@gmail.com ]
A Useful Presentation on “IAS -11 CONSTRUCTION CONTRACTS”
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